Philip Anthony Bonadonna v. Unknown

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 18, 2006
No. 05-15058 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 05-01162-CV-CAP-1

PHILIP ANTHONY BONADONNA,

Plaintiff-Appellant,

versus

UNKNOWN DEFENDANT,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(May 18, 2006)

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

Philip Anthony Bonadonna, a federal prisoner proceeding pro se, appeals the

district court’s dismissal of his petition for writ of error coram nobis, pursuant to
28 U.S.C. § 1651, and the denial of his motion to amend that judgment, pursuant to

Federal Rule Civil Procedure 59(e).1 The district court dismissed Bonadonna’s

writ as frivolous, concluding that he had failed to exhaust the remedy provided by

direct appeal and that the extraordinary remedy provided by the writ of error was

therefore unwarranted. We conclude that Bonadonna’s arguments are untimely

and AFFIRM.

I. BACKGROUND

On 4 April 1985, Bonadonna was haled before a grand jury where he refused

to answer the grand jury’s questions, even after the government offered immunity

from prosecution. Bonadonna served seventeen months for civil contempt and is

now incarcerated on charges related to the questions asked before the grand jury.

He argues that his time spent in jail for civil contempt was actually criminal in

nature and that he should have those seventeen months counted against his current

sentence as time served.

In the district court, Bonadonna argued that, in 1985 grand jury proceeding,

the government had other means of obtaining the information it was seeking from

him and that the government knew that he would not testify regardless of their

1
Bonadonna does not mention Rule 59(e) in his appellate brief, so we deem his
arguments with regard to that rule abandoned. Allison v. McGhan Med. Corp., 184 F.3d 1300,
1317 n.17 (11th Cir. 1999) (“Issues that are not clearly outlined in an appellant’s initial brief are
deemed abandoned.”).

2
offer of immunity. Therefore, he argued, the contempt order was merely punitive

rather than an attempt to coerce testimony. The district court conducted a frivolity

review pursuant to 28 U.S.C. § 1915A and found that the writ of error coram nobis

was an extraordinary remedy that was not warranted in this case because

Bonadonna had an alternative remedy, namely, he could have appealed his civil

contempt order pursuant to 28 U.S.C. § 1826(b). On appeal, Bonadonna argues

that the district court erred in dismissing his writ of error coram nobis because,

although he had a right to appeal his 1985 civil-contempt sentence, his attorney

dismissed the appeal without his permission.

II. DISCUSSION

A district court’s decision to dismiss for failure to state a claim under 28

U.S.C. § 1915A is reviewed de novo, taking the allegations in the complaint as

true. See Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003). We review a

district court’s denial of the writ of error coram nobis for an abuse of discretion.

Alikhani v. United States, 200 F.3d 732, 734 (11th Cir. 2000) (per curiam). “The

decision to alter or amend judgment is committed to the sound discretion of the

district judge and will not be overturned on appeal absent an abuse of discretion.”

Am. Home Assur. Co. v. Glenn Estess & Assoc., Inc., 763 F.2d 1237, 1238–39

(11th Cir. 1985). First, we determine whether a writ of error coram nobis is the

3
proper procedural vehicle to obtain reconsideration of the original contempt order.

Second, after concluding that the writ of error coram nobis is not the proper

procedural vehicle, we broadly construe Bonadonna’s pro se complaint to seek

reconsideration under Rule 60(b) and analyze his request for reconsideration under

the framework established by that rule.

A. Writ of Error Coram Nobis

Bonadonna has styled this as an action for a writ of error coram nobis. At

common law, such a writ of error was taken from the judgment of the King’s

Bench and asked that the court review its own judgment, alleging errors of fact.

Black’s Law Dictionary 362 (8th ed. 2004). Thus, the writ of error was

functionally a motion for reconsideration. However, the writ of error coram nobis

has been abolished in civil cases, and the procedure for obtaining relief from a

judgment in civil cases must be in the form of a Rule 60(b) motion or independent

action.2 United States v. Mills, 221 F.3d 1201, 1203 n.2 (11th Cir. 2000); see Fed.

2
In criminal matters, “[f]ederal courts have authority to issue a writ of error coram nobis
under the All Writs Act, 28 U.S.C. § 1651(a). The writ of error coram nobis is an extraordinary
remedy of last resort available only in compelling circumstances where necessary to achieve
justice.” United States v. Mills, 221 F.3d 1201, 1203 (11th Cir. 2000). “The bar for coram nobis
relief is high,” and the writ may issue only when (1) “there is and was no other available avenue
of relief”; and (2) “the error involves a matter of fact of the most fundamental character which
has not been put in issue or passed upon and which renders the proceeding itself irregular and
invalid.” Alikhani, 200 F.3d at 734 (quotations omitted). A district court “may consider coram
nobis petitions only where no other remedy is available and the petitioner presents sound reasons
for failing to seek relief earlier.” Mills, 221 F.3d at 1204.

4
R. Civ. P. 60(b).

Bonadonna challenges a contempt order from 1985. A federal district court

may order the confinement of “a witness in any proceeding before . . . [a] grand

jury of the United States [who] refuses without just cause shown to comply with an

order of the court to testify,” with the period of confinement not to exceed the

lesser of the remaining term of the grand jury or 18 months. 28 U.S.C. § 1826(a).

The confinement order is appealable, and the appeal must be adjudicated within

thirty days. 28 U.S.C. § 1826(b). We have previously emphasized the importance

of context in determining when a civil contempt order becomes criminal contempt

for proceedings that occur regarding testimony before a grand jury.3

Here, there is no dispute that in 1985 the district court employed § 1826 to

incarcerate Bonadonna through the end of the grand jury’s term, which means that

the contempt proceeding was civil in nature, because that statute provides the

mechanism to compel testimony before a grand jury. Bonadonna wishes to contest

3
See, e.g., In re Grand Jury Proceedings, 877 F.2d 849, 850 (11th Cir. 1989)
(considering an appeal from the denial of appellant’s motion for release from a civil contempt
order based on his failure to testify before a grand jury). The difference between civil contempt
and criminal contempt is whether the order is being used to compel someone to obey the court,
as is the case with civil contempt, or whether the order is used solely to punish, as is the case
with criminal contempt. See Shillitani v. United States, 384 U.S. 364, 368–71, 86 S. Ct. 1531,
1534–36 (1966). We held that “a reviewing court should be reluctant to conclude that civil
contempt has lost its coercive effect prior to the maximum time limit.” In re Grand Jury
Proceedings, 877 F.2d at 850. Bonadonna was held in contempt for less than the maximum
limit.

5
the substance of the civil characterization of his contempt order, but that judgment

is long since final, so he seeks to revisit the issue through this writ of error coram

nobis. As we observed previously, the writ of error coram nobis is functionally a

motion for reconsideration.

Generally, both the underlying merits and the denial of a motion for

reconsideration are on appeal. Stone v. INS, 514 U.S. 386, 401–03, 115 S. Ct.

1537, 1547–48 (1995). However, in this case, the merits of whether the 1985

contempt order was civil or criminal in nature belong to a judgment that is long

since final and unappealable. See Cavaliere v. Allstate Ins. Co., 996 F.2d 1111,

1115 (11th Cir. 1993) . Thus, we review the denial of Bonadonna’s writ of error

coram nobis as the denial of a motion to reconsider the nature of the 1985

contempt order, and we conclude that, because the merits of whether the

proceeding was civil or criminal are not currently on appeal, we must treat these as

civil proceedings for purposes of our review. However, the writ of error has been

abolished in civil cases, and Bonadonna’s application for a writ of error coram

nobis is, therefore, the improper method to obtain reconsideration of the 1985 civil

contempt order.

B. Motion for Reconsideration

Because we liberally construe pro se pleadings, Brown v. Johnson, 387 F.3d

6
1344, 1350 (11th Cir. 2004), we will review Bonadonna’s petition for a writ of

error coram nobis as a motion for reconsideration pursuant to Rule 60 of the

Federal Rules of Civil Procedure. Rule 60(b) allows a party to be relieved from a

judgment due to: (1) mistake, inadvertence, surprise or excusable neglect;

(2) newly discovered evidence which could not have been discovered earlier with

due diligence; (3) fraud, misrepresentation, or other misconduct of an adverse

party; (4) a void judgment; (5) a judgment that has been satisfied, released,

discharged, reversed or vacated; or (6) any other reason justifying relief from the

operation of the judgment. Fed. R. Civ. P. 60(b).

However, motions filed pursuant to Rule 60(b) must be filed within a

reasonable time, “and for reasons (1), (2), and (3) not more than one year after the

judgment, order, or proceeding was entered or taken.” Id.; see also Gonzalez v.

Crosby, ___ U.S. ___, 125 S. Ct. 2641, 2650–51 (2005) (holding that Rule

60(b)(6) relief is not available when the plaintiff had not acted diligently in

pursuing review of the issue previously). Bonadonna has provided no explanation

for why he has waited almost twenty years to request reconsideration. Thus, we

conclude that the delay was unreasonable and, therefore, affirm the district court’s

judgment.4

4
“If the judgment entered is correct, we may affirm the district court on any legal
grounds regardless of the grounds addressed, adopted or rejected by the district court.” Novak v.

7
III. CONCLUSION

Bonadonna sought a writ of error coram nobis from the district court in

order to reduce the sentence that he is currently serving. However, the writ of error

he seeks is not available in civil cases, and, because Bonadonna has proceeded pro

se, we have construed his request as a Rule 60(b) motion for reconsideration. We

conclude that Bonadonna did not seek relief within a reasonable time. Because the

district court properly found that Bonadonna was not entitled to a writ of error

coram nobis, we AFFIRM.

Irwin Yacht & Marine Corp., 986 F.2d 468, 470 (11th Cir. 1993) (quotations omitted).